Human Assisted Procreation and Human Rights
The Greek response to the felt necessities of the time
Ismini Kriari - Catranis
Associate Professor
Department of Public Administration
Panteion University of
Social and Political Sciences
The new reproductive technologies enable otherwise infertile couples to
reproduce noncoitally. Problems arising from the new reproductive techniques refer to
the persons entitled to have access thereto, to the methods accepted (such as procreation
by means of a surrogate mother), to the storage and donation of gametes and embryos, to
donor anonymity etc. Although homologous and heterologous insemination and in vitro
fertilisation have been performed in Greece for a long time, legal provisions thereon have
been established only recently: Law 3089/20021 on assisted procreation builds the
respective legal frame, regulating main aspects in this crucial field of interwoven human
rights and social duties.
I. The constitutional frame
1. The right to make autonomous choices about one`s procreation is inhering in article 5
para.1 of the Constitution, which safeguards the free development of the personality,
under the condition that it respects the Constitution, the rights of third persons and the
boni mores. Article 5 para. 1 should be read in conjunction with article 2 paragraph 1,
guaranteeing human dignity and art. 21 paragraph 1, determining that the protection of
family, motherhood and childhood are obligations of the state. Parenthood is an
important part of the life most individuals envision for themselves2 and decisions about
parenthood alter dramatically an individual`s self-definition.
2.The protection of genetic identity is added to the Constitution, following its recent
revision (as art.5 para.5), upon initiative of the Minister of Culture and Professor of
1
Official Gazette 327/ 23.12.2002
See Ism. Kriari – Catranis (1994): Biomedical Developments and Constitutional Law in Greece,
Sakkoulas, Thessaloniki, pp. 65 et seq. (in Greek).- The decisions as to whether to bear or beget a child
may affect in the most fundamental way a person`s life. In the formulation of an American Court: «Not
only does the birth of a new generation perpetuate our species, it allows every parent to contribute, both
genetically and socially, to our collective understanding of what it means to be human. Every child also
offers the opportunity of a unique lifetime relationship, potentially more satisfying and fulfilling than any
other pursuit», see Arabian Justice, Concurring, in. Johnson v. Calvert, Supreme Court of California, In
Bank, 20.5.1993, 851 Pacific Reporter, 2d Series, 776 et seq. (788).
2
Constitutional Law Evangelos Venizelos. The amendment was unanimously supported
by all political parties represented in the Greek Parliament3. The new article reads as
follows:
«All persons shall enjoy full protection of their health and genetic identity. All persons
shall be protected with regard to biomedical interventions as provided by law».
The genetic identity is to be understood as the genetic constitution of the individual, the
inherited genetic pattern.
II. International Law provisions
Greece signed the Convention for the Protection of Human Rights and Dignity of
the Human Being with regard to the Application of Biology and Medicine at Oviedo
(Asturias) on 4 April 1997 and ratified it by Law 2619/1998.
As article 28 para. 1 of the Constitution lays down the principle of the openness of
the Greek legal order to international law, the provisions of the Convention form an
integral part of domestic Greek law since the 1st. December 1999 and prevail over any
contrary provision of the law4.
Greece has also signed the Additional Protocol to the Convention on Human Rights
and Biomedicine on the Prohibition of Cloning Human Beings, but has ratified it by a
Ministerial decision and not by law, as of now5.
III. The legal frame
1. Law 3089/ 2002 incorporates new articles in the Civil Code and modifies existing
regulations about filiation, as a result of the new reproductive techniques.
1.1. General field of application: The law applies to the various assisted human
procreation methods, such as artificial insemination with the husband’s semen,
with that of the partner (when the couple is not married) or with a donor’s semen;
further it applies to in vitro fertilisation with embryo transfer; the Law also allows
the reception of an egg by an infertile woman who will complete gestation, and
also the reception of an embryo, created by donated gametes. Post mortem
insemination and post mortem embryo transfer are allowed (art. 1457 CC), as well
as gestational surrogacy (i.e. the implantation of an embryo into the uterus of a
woman, who has not provided the ova; this woman will gestate an embryo
genetically "unrelated" to her and give it his/her genetic parents) (art. 1458).
3
See Z´ Revisional Parliament, Report of the Revision Committee, Report by E. Venizelos, pp. 7,
10, 24; Reports by representatives of the political parties of the opposition see . Varvitsiotis (New
Democracy) pp. 85 (97); A. Skyllakos (Communist Party) pp. 129 (135); F. Kouvelis (Coalition of the Left
and Progress) pp. 139(146). See also Ismini Kriari – Catranis (2002):. Bioethical Issues and Human Rights
in Greece in: Law and the Human Genome Review, No. 16 2002, pp. 37 – 57 (39).
4
Art. 28 ara. 1 :” The generally acknowledged rules of international law, as well as international
conventions as of the time they are sanctioned by law and become operative according to the conditions
therein, shall be an integral part of domestic Greek law and shall prevail over any contrary provision of the
law…”.
5
See Sp. Vlachopoulos (2000): Cloning in Greek Legal Order, Sakkoulas, Athens in Greek).
The law strives to fulfill three purposes: a fundamental purpose, consisting in the
combat of human infertility, a complementary purpose, which aims at the prevention of
disease and a third purpose, which strives at facilitating research.
1.1.1. The fundamental purpose, which consists in combating human infertility. The
various methods should not be used as an alternative mode of procreation but they
may be applied for the benefit of heterosexual couples, when other methods of
treatment of infertility have failed or offer no prospect of success (article 1455,
paragraph 1 CC).
The law refers to married women as well as to unmarried women, who are living
(cohabitating) with a man (article 1456, paragraph 1). It should be noted, that the law
implicitly allows single infertile women6, to make use of assisted procreation
techniques, given that it foresees that the unmarries woman should give her consent
to assisted procreation by means of a notarial document 7 (article 1456, paragraph 1).
As fas as the age of the treated person is concerned, the law foresees that medical
assistance is permissible up to the reproductive age of the assisted person (article
1455 paragraph 2 CC).
Cloning, as a mode of reproduction, is expressis verbis prohibited (article 1455
paragraph 3 CC).. The cloning of a mammal may be realized by:
a. embryo splitting (whereby embryos generated in vitro may be split, after the
initial cell divisions, into individual totipotential cells. Each of these cells may
consequently develop to independent embryos) and by
b. cell nuclei transfer (where the recipient cells should incorporate the genetic
information of the foreign cell nucleus. In the notorious Dolly experiment it has been
possible to transfer the nucleus of a somatic cell into an ovum, from which the
nucleus has been removed. The animal which developed was genetically identical
with the donor of the somatic cell).
Cloning by embryo splitting does not raise the same ethical and legal questions
as cloning by nuclei transfer. In both cases, however, an individual is endowed with a
given genetic pattern and his/her characteristics are predetermined in a way stripping
him/her beforehand of the freedon he/she would otherwise enjoy. «Producing a host
of theoretically identical beings constitutes an attack on the identity, the
nonrepeatable nature and the genetic integrity of the individuals thus born, given that
their genetic integrity has also been manipulated or at the very least selected»8,
See a similar regulation in the Spanish law on assisted procreation No. 35 of 1988: ” Any
woman may be the recipient or user of the techniques that are regulated by the present law…”, article 6.
Critical remarks by C.M. Romeo-Casabona/ J. U. Hernandéz- Plasencia/ E. Sola-Rechesee in: International
Encyclopaedia of Laws, Kluwer, 1994, Spain, pp. 174 – 176.
7
Article 1456, paragraph 2: In the case of unmarried woman, her consent or the consent of her
partner, if such exists, are furnished by a notary document.
8
Carlos M. Romeo Casabona (1998): Legal limitations on research and its results? The cloning
paradigm in: Fujiki/Macer (eds.) Bioethics in Asia, pp. 41 – 50 (46); .See also I. Kriari – Catranis (2002):
Bioethical Issues and Human Rights in Greece in: Law and the Human Genome Review, No. 16 2002, pp.
37 – 57; Die verfassungsmässige Problematik des Klonens in Griechenand in: Revue Hellénique de Droit
International, 2000, pp. 591 – 612; Sp. Vlachopoulos (2000): Cloning in Greek Legal Order, Sakkoulas,
Athens (in Greek).
6
1.1.2. The complementary purpose: Prevention of a serious genetic or hereditary
illness. The new techniques may be also used when a serious risk exists of
transmitting to the child a grave hereditary disease or when there is a serious risk
that the child would suffer from some other disease which would result in his
early death or severe handicap. This means that the law authorizes the selection of
healthy gametes or of pre- implantation embryos, so that only healthy embryos be
implanted.
These techniques should not be used for obtaining particular characteristics in the
future child or for the purpose of selecting the sex except where a serious
hereditary disease linked with the sex is to be avoided (i.e.diseases related to the
X chromosome such as haemophilia and Duchenne´s muscular dystrophy)(article
1455, paragraphs 1 and 4 CC).
1.1.3. The third purpose of the law is to provide the general frame for embryo
research. Article 1459 CC states that the surplus embryos, created during an
infertility treatment and not transplanted for various reasons may be donated to
another infertile couple, on condition that the consent of the individuals providing
the gametes has been obtained before the beginning of in vitro fertilisation
treatment. The gamete providers have decision making authority over the
embryos that are created by their sperm and ova and they may decide to donate
them 9. The main reason behind the possibility of donation is to save surplus
embryos from destruction when they are no longer needed by the first couple10.
The gratuitous donation of the embryo rests on the idea that the human body is res
extra commercium.
Further the gamete providers may decide to give them to research teams for
research or therapeutic purposes or to let them be destroyed11.
In case there is no common declaration of the persons concerned, cryopreservation can last up to five years. After this period of storing, cryo-preserved
embryos can either be used for research and therapeutic purposes or be destroyed.
Non cryo-preserved fertilized ova should not be stored for a period exceeding 14
days, the time of cryo-preservation not being taken into consideration. (article 1459,
paragraph 3).
1.2. Specific requirements
1.2.1. Gamete donation should be permitted, on condition that the mutual anonymity of
the donors and recipients be respected. Medical information related to the donor is
9
The general problems related to embryo donation see in the highly publicized American case
Davis v. Davis, Supreme Court of Tennessee/1.6.1992, 842 South Western Reporter, 2d series, p. 588 et
seq.
10
See Council of Europe Report on Human Artificial Procreation, op. cit. principle 11.- Embryo
donation is explicitly regulated in the French Bioethics Laws of 1994 (articles 152 –3,152-4, 152-5 of the
Code of Health. The donation is ordered by court decision, after the written consent of the gamete providers
has been obtained.
11
About the potential of embryo research see I. Kriari – Catranis (1997): Embryo Research and
Human Rights – An Overview of Developments in Europe, in: European Journal of Health Law, 1997, σ.
43 – 67
kept confidential. The child may have access to this information on medical
grounds, related to his/her health (article 1460 CC).
There should be no profit to the donors of gametes, only the refunding of expenses
(article 21 of the European Convention on Biomedicine).
1.2.2. In the case of heterologous insemination by donor an amendment of the Greek
Civil Code, already in 1983 (article 1471 para. 2) forbids a husband from
disputing fatherhood, if he had previously given his consent to artificial
insemination12. Law 3089 of 2002 modifies partially this regulation by adding
provisions related to the cohabitating couple. The percentage of people
cohabitating in Greece is the lowest of all member – states of the EU: Although
the average percentage in the EU is 7%, in Greece the figure is only 1%. In the
under 30 age group, the average percentage in the EU is 28% and in Greece it is
only 7%13.
The main principles of the new law are:
a. Every medical act intending to assist human reproduction should be undertaken
with the written consent of the couple wishing to have children (article 1456
paragraph 1)´. If the husband has consented to the medically assisted reproduction
of his spouse paternity cannot be contested (article1471 CC).
a. In the case of cohabitation, the consents of the cohabitating couple should be
given by a notarial act ( article 1456, paragraph 1 section b). The notarial
consent of the man has the same legal effects as the voluntary
acknowledgement of a child born out of wedlock (article 1475 paragraph b´).
The woman´s consent shall also apply as consent to voluntary
acknowledgement.
b. At disputes concerning the contestation of maternity 14 or paternity the court
may order the production of all relevant evidence. If a party to the action,
although he/she has no particular reasons concerning his/her health, refuses to
undergo the appropriate medical test, the Court presumes that the allegations
of the opponents have been proved (article 615 paragraph 1 CC in conjunction
with article 614 paragraph 1 CC).
1.2.3. The problem of gestational surrogacy had been discussed in the Greek legal
doctrine, but there was no legal provision15.
12
See Ism. Androulidakis – Dimitriadis (1986): Legal questions about the IVF techniques in:
Legal Tribune (NoB) 34, pp. 10 – 17 (in Greek); Greek Civil Lawyers Association: First Congress,
Naypaktos 27-28 Mai 1994, Section III “Medically assisted procreation and civil law”, Reports:
Deliyiannis, J., pp. 199-219; Androulidakis-Dimitriadis, pp. 221- 231; Interventions: Kounougeri –
Manoledaki, pp. 235 – 241, Papadopoulou, pp. 243 – 246, Papazissi, pp. 247 – 253; Nikolopoulos, 255 –
257; Kotzabassi, 259-262; Stambelou, 263-265; Christodoulou, 268 – 282; Christakou – Fotiadi, 283 – 284.
Conclusions: Daskarolis, p. 285 (in Greek); See also Papadopoulou, Art. 1463-1464 Gr. Civ. Code , in the
Commentary of Greek Civil Code ed. by Georgiades- Stathopoulos, vol. VII, pp. 499-536 (in Greek).
13
See Pen. Agallopoulou (2003): Cohabitation and One –parent Families According to Greek
Law, in: International Family Law, March 2003, pp. 24 – 28 (24, ft. 4).
14
In the case of gestational surrogacys see infra point 1.2.3.
15
See Ism. Kriari – Catranis, Biomedical Developments and Constitutional order…,op. cit. p. 114
et seq.; E. Kounougeri- Manoledakis (1994): The determination of maternity in the case of gestational
surrogacy, Armenopoulos, p. 1233 et seq. (in Greek).
Given that as of now there was no legal prohibition of surrogacy, some doctors
had begun to practise it. In a recent Court Decision genetic parents have adopted their
genetic children, that were gestated and born by a surrogate, although the agreement
about surrogacy is considered in the said Decision as against boni mores 16.
The law 3089 of 2002 allows gestational surrogacy by a court authorization,
issued before the embryo transfer, if following conditions are met:
a. There is a written and without any financial benefit agreement between the involved
parties, meaning the persons wishing to have the child and the surrogate mother. In case
the latter is married, the written consent of her husband is also required.
b. The woman who will mother the child should provide a medical attestation about her
inability to gestate the child A medical attestation should provide information about the
good health condition of the surrogate (article 1458 CC).
So an embryo may be created by the ovum of one woman and then it might be
gestated by another; the latter will hand it over, after the delivery, to a third woman, the
“social mother” of the child, i.e. the one who has got the court authorization for its
creation..
c. Both the woman wishing the child and the surrogate mother should have their domicile
in Greece (article 8 of Law 3089 of 2002).
d. In case the child is born by a surrogate, under the conditions of article 1458 CC, it is
presumed that mother is the woman who has obtained the court permission. This
presumption may be reversed by a legal action contesting the maternity, within six
months after the birth of the child. The maternity may be contested by the legal action
either by the presumed mother or by the surrogate, provided that evidence is procured
that the child is created by ova from the latter. (article 1464 CC).
So the ancient roman axiom mater semper certa est does no longer represent a
well-established truth.: In the above mentioned case of surrogacy, mother is not the
woman who has delivered the child but the one who has received the court permission.
1.2.4. Post mortem fertilisation 17. Assisted reproduction after the death of the male
spouse or partner is allowed by court autorization, if both the following
requirements are met:
a. The spouse or the partner suffered from a disease that either could affect
fertility or could endanger his life and
b. The spouse or the partner had consented via a notary document for post
mortem fertilization.
c. Assisted reproduction is carried out not before six months and not after two
years from the death of the spouse or partner.
d. The regulations about inheritance are laid down in article 1711 CC, specifying
that a person that was at least conceived at the time of devolution of the estate, may
16
Dec. No. 31/5803/176/1999 of the Iraklion District Court; arguments for the legalisation of the
procedure through gestational surrogate by framing the conditions thereto seein: Pen. Agallopoulou :
Gestational Motherhood (2000) in: Critical review of Legal Theory and Practice, pp. 227 – 238, (in Greek)
; the same: Custody in the cases of assisted procreation (in Greek) in: Charistia to J. Deliyanni,
Thessaloniki 1991, pp. 227 –238 (232-235).
17
Favourable opinion as to post mortem fertilization see in: T.Vidalis (1999): Life without face The Constitution and the Use of Human Genetic Material, Athens, Sakkoulas, p.94 et seq. (in Greek).
become a heir. This applies also to persons that are born by means of post mortem
fertilization.
2. Existing legal provisions about the administration of assisted procreation
The establishment and function of units of artificial fertilisation is foreseen in
Section 59 of Law 2071/1992 on the « Modernisation and Organisation of the Health
System». A law issued upon proposal by the Ministers of Finances, Justice, Health Care
and Social Services, based upon the opinion of the Central Council of Health, will
determine the terms and conditions for the establishment and function of Units of Human
Artificial Fertilisation. These Units are to function only in specifically equipped and
structured public or private hospitals, or specifically equipped and structured private
clinics (para. 2).
The same law, now undrer elaboration, will determine all details referred to the ethical,
professional, legal and economical regulation of the whole issue (para. 1).
A Ministerial Decision (1335 of 13.3.1996) on the operation of Human
Fertilisation Units and Sperm Banks, issued by the Mistry of Health and Care sets out the
principles governing the use of sperm in the process of human fertilisation. Only frozen
sperm by donors may be used for infertility treatment, after having been subject to all
relevant tests, foreseen by the World Health Organization and other internationally
recognized organizations. The establishment and operation of a national donor registry is
also under elaboration in the above mentioned decree.
IV. Social perception of the Law
Given that the necessity for a law regulating new reproductive techniques has
been realized for quite a long time, its drafting has met with approval. However, some of
its options have caused concern, as, for instance, the possibility of the single woman to
have access to the methods, post mortem ferilization and gestational surrogacy.
In the first two cases it was argued that this choice must lie in the couple
(married or not), in order to foster the well – being of the child: The existence of two
parents does not guarantee that the family environment is an ideal one, but a child should
not be deprived of the presence of the father (including all aspects of paternal authority,
such as support, food, education etc.)18 and of the connections with the paternal line by
means of a state regulation, given that the constitutional protection of the family and the
child should encourage the creation of two – parents family units (article 21 of the
Constitution).
Surrogacy, as a form of instrumentalization of the woman, raises also
constitutional concerns, given that a person is used as a means, and not as an end,
contrary to the constitutional provision safeguarding human dignity. (article 2 paragraph
1). Further surrogacy has great potential to foster the physical, emotional and financial
exploitation of women; the implications on the child`s mental health have not been
gauged and there is concern that the procedure may present risks to all the participants19
18
Similar comments in Casabona et al., in Spain, op. cit. p. 176
See in extenso the arguments pro and contra gestational surrogacy in : The Ethics Committee
of the American Fertility Society: Ethical Considerations of the New Reproductive Technologies, 1994, pp.
68s – 73 s.
19
(as in the case that the child is born with handicaps –whereby the genetic parents may not
wish to accept it, or in the case that the surrogate behaves in a way, that might endanger
the baby´s life or health). Even if the law allows it, if practised on humanitarian grounds,
financial transactions cannot be exluded.
These arguments were presented by the legal doctrine, some of them were
adopted by deputies and they were debated upon in the Greek Parliament. Despite
these objections the law was voted by all political parties represented in the Parliament20,
on the following grounds:
1. That the one – parent falmilies are already a social reality and
2. That the the wish of the genetic parents to have a child, by means of a
surrogate, should not be considered as infringing the constitutional rights of
another person.
20. See our article: The Constitution and the Draft Law on Human Assisted Procreation“, in:
Annals in Private Law, 8 , 2002, pp. 679 – 688 (in Greek). In the same review see: Th.
Papachristou: Lex dei, lex populi?, p. 673 – 676 και Ε. Kounougeri - Manoledaki: Draft Law
on human assisted reproduction and the arguments against it, pp. 676 – 679. In issue 7 of the
same Review see Μ. Κarassis: Draft Law on Human Assisted Procreation“, pp. 577 – 585 και
Κ. Pantelidou: Remarks on Draft Law on Human Assisted Procreation, pp. 586 – 590.- See
also the report of the Bioethics Committee of the Greek Orthodox Church in the newspaper
TO ΒΗΜΑ (The Tribune), 30 and 31 Οctober 2002 and the Report of the opposition by A.
Lykourezos, Minutes of the Parliament, 5, 6 and 7 Νovember 2002.